STRESS NOT ENOUGH TO EXTEND TIME

Two recent decisions of the Fair Work Commission have demonstrated the difficulty employees face if they do not lodge their unfair dismissal applications within the 21 day period.

In the first instance the employee was two years and two months late (Ellikuttige v Moonee Valley Racing Club [2017] FWC 4829) and in the other the employee was 21 days late (Michnik v Silver Chain [2017] FWC 4804).

Both decisions reviewed what “exceptional circumstances” mean in the context where the Fair Work Commission can extend the time in which to lodge an unfair dismissal application.

“Exceptional circumstances” is to be given its ordinary meaning.

For something to be exceptional it need not be unique, unprecedented or very rare but it needs to be something more than is regularly or routinely or normally encountered.

Both dismissed employees relied on stress for seeking an extension of time to lodge their unfair dismissal applications.

However, because stress is a routine reaction when people are dismissed from their employment this was not a factor that the Commission in both cases was prepared to accept could be “exceptional”.

For more information or advice on how to deal with extensions of time contact our workplace relations team.